Discrimination toolkit

Complaint procedures at the ADB and AHRC

Is there a time limit on making a complaint?

Yes. At the ADB the time limit is 12 months from when the discrimination happened. At the AHRC it is 6 months from when the discrimination happened. See the deadline passed section below if you have missed the time limit.

Do I need a lawyer to represent me?

No. You can represent yourself at the ADB or the AHRC. A lawyer can also make a complaint on your behalf. However, if you do have a lawyer they will need to get permission from the ADB or the AHRC to attend a conciliation conference with you. This is usually not a problem.

If you don't have a lawyer to represent you, it is very important to at least get some legal advice about your case as early as you can. There are many places where you can get free legal advice about discrimination, including community legal centres and Legal Aid NSW. They might also be able to represent you in your case (see Getting help - Legal Aid). Remember, staff at the ADB or the AHRC cannot give you legal advice.

Here are some of the questions you should ask a lawyer:

Is this appointment free?

How much will it cost for you to represent me at the ADB or the AHRC?

Do I have a good discrimination case?

Do I have any non-legal options apart from making a discrimination complaint? If so, what is best for me?

Do I have any other legal options apart from making a discrimination complaint? For example - if your complaint is about discrimination in your workplace - would I be better off taking action in the Fair Work Commission or making a complaint to the Fair Work Ombudsman? Do I have a potential workers' compensation claim?

How long do I have to lodge a discrimination complaint?

Should I lodge my discrimination complaint with the ADB or the AHRC?

Who are the 'respondents' in my case?

What should I include in my discrimination complaint?

What's involved in the discrimination complaint process?

How long does it all take?

How should I prepare for conciliation?

What results can I ask for?

What happens if my discrimination complaint is not resolved at the ADB or the AHRC?

What evidence should I collect to help prove my case?

How much will it cost for you to represent me if my complaint goes to NCAT, the FCC or the FCA?

How do I make a complaint?

All discrimination complaints to the AHRC and the ADB have to be in writing. You can write your own letter or email about your complaint or you can fill in an official AHRC or ADB complaint form. You can ring them up and ask them to send you a form or you can download and print one from the website. The AHRC also lets you lodge a complaint online.

If you have trouble writing down your complaint, the AHRC or the ADB can help you. You can write your complaint in any language and the ADB or the AHRC will get it translated. It won't cost you anything. You can also lodge a complaint in braille.

The complaint forms from the ADB and the AHRC might not give you enough room to write down what happened. We recommend that you write out (type it or get it typed, if you can) your story about what happened on another piece of paper - use as many sheets of paper as you need - and include as much detail as possible. Attach this to your complaint form and write the words 'See attached statement' in the section on the form where it says 'Describe what happened' or 'What happened'. See the checklist below for what you need to include in your complaint.

Make sure the information you put in your complaint is right. It might be bad for your case if you change your story later.

If you can, get a lawyer to check your complaint before you send it in.

Complaint checklist

What information should I include in my complaint?

Your name and contact details.

The name and contact details of the other side ('the respondent'): make sure you include the names of all the individuals you want to complain about and the name of the organisation they work for. You have to do this because employers are generally 'liable' (legally responsible) for discrimination and harassment in the workplace. This is called 'vicarious liability'.

If your complaint is against an organisation, try to find out (and write on your complaint form) the registered legal company name of this organisation, not just the name of the business. For example, 'Fancy Fred's Fruit Market' might be the name of the shop, but the registered legal name of the company could be 'Fred Fang Pty Ltd'. If you are not sure what the legal name of the organisation is, ask the AHRC or the ADB to find out for you. You could also find out by doing a search of the business name on the Australian Securities and Investment Commission (ASIC) website.

The name of the person you are making the complaint for, if you are doing it on behalf of someone else, such as your child.

The name and contact details of your lawyer or union if they have agreed to take on your case.

Your relationship to the person you are complaining about (for instance, your boss or landlord).

The 'ground' or type of discrimination you are complaining about (race, sex, sexual harassment, for example).

The 'area' it happened in (employment, goods and services, education, accommodation etc).

What happened: stick to the facts, and write down as much information as possible.

When it happened: be as specific as you can with dates and times. If you are not sure about exact dates/times, put in an estimate, and make it clear that it is an estimate. Give the reasons why you think it happened around that time. Sometimes people remember dates by thinking of what else was happening around that time: you might write, 'I cannot remember the exact date but I know it happened in the week before my daughter's birthday which is the 5th February', for instance.

Where each thing happened: be as specific as possible about the exact location where events or conversations happened.

Who was there: list the full names of all the witnesses you can remember.

Anything you've done to try to deal with the situation (such as making a complaint at your workplace), plus what has happened as a result of that.

Any documents that are connected with your complaint, such as letters, pay slips, diary notes, medical reports, termination notices: make photocopies of them to send in as part of your complaint, and keep the originals.

The effect the discriminationhas has had on you: how it's made you feel and how it has affected your life.

The results you want from your complaint; you don't need to go into too much detail. It's probably better to get legal advice before you write exactly what you want. For example, if you want money, it might be better to say 'compensation' than to write down an exact amount.

Try to make your statement as easy to read as possible. Here are some ideas on how to do that:

type it (or try to get someone to type it for you);

write out your story in chronological (time) order, from beginning to end;

use numbered paragraphs (make a new paragraph, with its number, for each new idea or event);

use headings and subheadings;

if your statement includes conversations, try to use the exact words people said:

My boss said, "Angela, you are fired. You can't do the job any more now that you have a bad back." NOT My boss told me he was firing me because of my back injury.

If you are not 100 per cent sure of the exact words that were said, write:

My boss said something like "Angela, you've done your back in and can't do your job. I'm going to have to let you go."

Tips

You can add to your complaint after you've lodged it if you need to, but it's best to give as much information as possible from the start. It's a good idea to get a lawyer to check your complaint, just to make sure you haven't missed anything.

Tell the ADB or the AHRC if there are any special reasons why you want your complaint to be dealt with urgently - for example, if you are about to be fired from your job. If you're in this situation, also write URGENT at the top of your complaint letter or form.

What if the 12-month deadline has passed?

The AHRC and the ADB can still accept your complaint if you give good reasons why it's late. If you're outside the 12 month time limit, you should always write out the reasons and send them in with your complaint form.

For example, you might have been unable to make the complaint for personal or health reasons, or because you were trying to sort it out in a non-legal way.

The most important things to explain are:

why you delayed in lodging your complaint; and

why it will not disadvantage the other side if your complaint is accepted now (because all the evidence is still available, for example).

If your reasons for the delay in lodging your complaint are medical or psychological ones, you should if possible provide the ADB or the AHRC with something from your health practitioners.

In practice, the AHRC will initially accept your complaint even if it's out of time, but might later decide to terminate it if more than 12 months has passed.

The ADB won't accept your complaint if it's outside the 12 month time limit, unless you have shown good reasons in your initial complaint.

These different procedures mean that your complaint probably has a better chance of being accepted by the AHRC rather than the ADB if it is out of time.

Can I include events that happened more than 12 months ago in my complaint?

Sometimes discrimination happens over a long period of time, maybe even years. The ADB will only look at the discrimination that happened in the 12 month period before the complaint was lodged. They will not usually look at anything that happened before this. If you want the ADB to include any events that happened more than 12 months before the date your complaint was lodged, you need to ask the ADB at the time when you lodge your complaint.

In contrast, the AHRC will generally look at a pattern of unfair treatment that has happened over a longer time period, as long as some of the events occurred in the last 12 months.

If any of the events you're complaining about happened more than 12 months ago, it might be better to complain to the AHRC rather than the ADB.

Salma's story

Salma is 19 years old and lives at home with her parents. She works as a trainee in a bank. Her manager often makes sexually suggestive comments about her figure and asks if she has a boyfriend. Salma does not respond when he says these things and feels uncomfortable being around him. She doesn't feel like she can tell him to stop, or to tell anyone else about it because she has just started in the job and wants a career in banking. His behaviour gets worse and one evening after everyone else has left for the day he comes up behind her and puts his hand up her skirt and tries to kiss her neck.

After this incident Salma starts having panic attacks and is unable to work. She is very depressed and anxious but feels too ashamed to tell anyone what's happened. Eighteen months later, Salma is diagnosed with post traumatic stress disorder after confiding in her doctor about her experience. Her doctor refers her to a psychologist and a lawyer.

Even though the incident happened more than 12 months ago, her lawyer encourages her to lodge a sexual harassment complaint with the AHRC because she has very good reasons for the delay. Her lawyer gets a letter from her doctor and her psychologist to explain the delay.

How do I lodge my complaint with the AHRC or the ADB?

Send in your complaint by mail, fax, email or online. Make sure you keep a copy of everything you send to the AHRC or the ADB, including any statements or documents you have attached to your complaint.

If you have made your complaint online, print it out before you send it, and keep that copy.

How long before I hear back?

You should get an acknowledgement letter from the AHRC or the ADB within a week. The letter will just say that your complaint has been received. If you don’t hear anything for a month, contact the ADB or the AHRC to find out what’s happening.

The ADB or the AHRC will give your complaint to a staff member to investigate and try to resolve. At the AHRC these people are called Investigator/Conciliators. At the ADB they are called Conciliation Officers.

What will the AHRC or the ADB do with my complaint?

The first thing the AHRC or the ADB officers will do is check whether your complaint fits within the law and whether it has been lodged in time. They might ask you for more information to help them make this decision.

At this point, the ADB or the AHRC might reject your complaint. The ADB and the AHRC have different rules about this.

it was lodged more than 12 months after the discrimination happened; or

what you believe is unlawful discrimination is not actually against the law.

If the ADB declines your complaint at this stage you cannot go to NCAT and appeal their decision. You might be able to get the ADB's decision reviewed by the Supreme Court of New South Wales, but this is an expensive and technical path. If you are thinking about doing this, get some legal advice first. You have 28 days to go to the Supreme Court.

The AHRC might reject your complaint (they call this 'terminating' the complaint) for one of a number of reasons, including if:

it was lodged more than 12 months after the discrimination happened;

what you believe is unlawful discrimination is not actually against the law;

there's a better path for you to take than a discrimination law complaint;

the complaint is trivial, lacking in substance, misconceived or vexatious (malicious); or

the complaint has already adequately been dealt with in another way (by another statutory authority for example).

In practice only a small percentage of complaints are terminated by the AHRC at this stage. If the AHRC does terminate your complaint upfront you can take your case to the FCC or FCA. You have 60 days to do this.

Arwen's story

Arwen and her friends are banned from the plaza for riding their skateboards in the carpark. Arwen thinks this is discrimination.

She makes a complaint to the ADB but gets a letter back from them saying it has been declined. They say her complaint doesn't show a breach of discrimination law because there is no 'ground'.

What happens if my complaint is accepted?

If your complaint is accepted, the next step is usually investigation. The investigation step at the AHRC and the ADB just means asking both sides for their story about what happened.

The AHRC or the ADB will write to the person or organisation you are complaining about (the 'respondent') and give them a copy of your complaint. This means that you can't make an anonymous discrimination complaint.

The ADB will ask the respondent to put their side of the story in writing. The respondent normally has 28 days to do this, but they might ask the ADB for extra time.

The AHRC might get the respondent's side of the story in writing or they might decide to go straight to a conciliation conference, depending on the circumstances. In most cases we think it is a good idea to ask for the respondent to provide a written response to your complaint before conciliation. That way you can go to a conciliation conference more prepared (and probably feeling less anxious) because you know what the respondent will say about your complaint. You won’t be surprised or put off by hearing their response for the very first time in the conciliation conference – and can use that conciliation process to stay focused on resolving the complaint. You will also be able to get proper legal advice about the strengths and weaknesses of your case before the conference because the lawyer will have seen everyone’s versions of events.

If the respondent sends in a written response to the AHRC or the ADB, you will be given a copy and you can usually comment on it if you want to.

The next stage is usually for the ADB or the AHRC to try to arrange a conciliation conference (see Conciliation).

What if my complaint is not accepted?

At any point during the investigation phase the AHRC or the ADB can decide not to take your complaint any further. Again, the AHRC calls this 'terminating your complaint' and the ADB calls it 'declining your complaint'. The reasons are generally the same as those listed above. They include:

the complaint is lodged more than 12 months after the discrimination happened;

what you believe is unlawful discrimination is not against the law;

there's a better path for you to take than a discrimination law complaint;

the complaint has already adequately been dealt with in another way (including by another statutory authority for example);

the complaint is trivial, lacking in substance, misconceived or vexatious; or

there is no reasonable prospect of resolving the complaint in conciliation.

If the AHRC decides to terminate your complaint for any of these reasons you can go to the FCC or the FCA. You have 60 days to do this.

If the ADB decides to decline your complaint for any of these reasons, you can ask them to refer it to NCAT. You have to ask within 21 days. You will then need to get NCAT's permission to hear your case. This is called 'applying for leave' (see NCAT 'leave').

If 18 months has passed since you lodged your complaint with the ADB, and you still have not had a conciliation conference, you can ask the ADB in writing to refer your complaint to NCAT.

During the investigation it might become clear to the AHRC or the ADB that there is no chance you can sort out your complaint with the other side or it would be inappropriate to try. This might happen, for example, if the respondent doesn't reply to the AHRC or the ADB, or they refuse to go to a conciliation conference. If this happens, the AHRC or the ADB will usually 'terminate' your complaint. If your complaint is terminated for these reasons, you don't need permission to take your case to the FCC, the FCA or NCAT.